[00:00:00] Speaker 05: Phase number 24-7140. [00:00:01] Speaker 08: Jeanese Johnson versus District of Columbia et al. [00:00:06] Speaker 07: at balance. [00:00:07] Speaker 07: Ms. [00:00:07] Speaker 07: Anderson for the imbalance. [00:00:09] Speaker 07: Ms. [00:00:09] Speaker 07: DeHannon for the appellate. [00:00:11] Speaker 08: Good morning, Your Honor. [00:00:12] Speaker 08: Stacey Anderson on behalf of Appellants, Quincy Booth and Wanda Patton. [00:00:17] Speaker 08: With the court's permission, I'd like to reserve two minutes for rebuttal. [00:00:20] Speaker 08: Your honors, I think where I want to begin today is with the second prong of the qualified immunity analysis. [00:00:25] Speaker 08: The jurisdictional question and the merits on that point are clear cut and straightforward. [00:00:30] Speaker 08: This court plainly has jurisdiction to consider whether the law was clearly established at the time Ms. [00:00:35] Speaker 08: Johnson was removed from her position. [00:00:37] Speaker 08: In Johnson, the court recognized its reviewable determination. [00:00:42] Speaker 08: It's a question of law, and it's one where the court assumes, and reviewing the question, that the facts are taken in the light most favorable to Ms. [00:00:50] Speaker 08: Johnson. [00:00:50] Speaker 08: And the district is not disputing that that is the appropriate standard here. [00:00:53] Speaker 08: We reviewed a lot of facts in light most favorable to Ms. [00:00:55] Speaker 08: Johnson. [00:00:56] Speaker 04: One of the things we have to decide is whether the, I think one of the things we have to decide is whether the April 27th interview, which I guess then aired in early May, [00:01:07] Speaker 04: was a but for cause of the firing. [00:01:11] Speaker 04: That seems like a pretty fact bound question. [00:01:15] Speaker 08: Yes, your honor. [00:01:16] Speaker 08: But again, on the clearly established prong, the court assumes there was a constitutional violation. [00:01:21] Speaker 08: The court would resolve that question. [00:01:22] Speaker 04: Which is why what's presented to us regarding the April 27th interview seems like it may not be the type of question we have jurisdiction [00:01:32] Speaker 04: to consider on an interlocutory appeal because it is not raising any disputed questions of law, it's just raising a disputed question of fact. [00:01:41] Speaker 08: As to the disputed question of fact, Your Honor, I think there is an area where the court has jurisdiction and that's where the factual finding or the lack of a factual finding here would not be supported by the record, is blatantly contradicted by the record. [00:01:54] Speaker 08: So in the district's view, the record would blatantly contradict any finding that Patton knew about the April 27th interview. [00:02:01] Speaker 06: I thought that was exactly the part of it that Johnson versus Jones said is not subject to scrutiny. [00:02:08] Speaker 06: It is generally a question of law, to be sure. [00:02:11] Speaker 06: We review summary judgment on final judgment all the time. [00:02:16] Speaker 06: And it's a legal question whether the record reflects a material issue of fact in disputes such that [00:02:23] Speaker 06: the non-moving party, if it's the plaintiff, could persuade a fact finder. [00:02:27] Speaker 06: But Johnson versus Jones does something different in terms of- I don't dispute that, Your Honor. [00:02:33] Speaker 06: I think Scott versus- But it seems like you are fighting the record in terms of [00:02:39] Speaker 08: Again, let me make clear for purposes of whether the law was clearly established, we resolve that factual dispute in Ms. [00:02:47] Speaker 08: Johnson's favor. [00:02:48] Speaker 08: We will take that the court can assume that Patton knew about the interview. [00:02:54] Speaker 08: The question on the clearly established prong is whether assuming that constitutional violation exists. [00:03:01] Speaker 08: whether the law was clearly established that terminating Miss Johnson in the circumstances of this case was unconstitutional. [00:03:08] Speaker 04: Now, in my understanding, you are assuming for the sake of argument that the April 27th interview was a but for cause of Johnson's firing. [00:03:23] Speaker 08: For purposes of the second prong, I'm not conceding that point. [00:03:26] Speaker 08: If the court gets to the First Amendment question, I am not conceding that point. [00:03:31] Speaker 08: I would argue that, again, based on Scott versus Harris, where facts are blatantly contradicted by the record, and in this case, it's our view, the court does have jurisdiction. [00:03:40] Speaker 08: It's a narrow, narrow exception. [00:03:41] Speaker 08: I recognize Johnson versus Jones. [00:03:44] Speaker 08: I understand that principle, but it is a narrow exception. [00:03:46] Speaker 04: But if nothing had been written, said, or leaked other than the April 27th interview, [00:03:53] Speaker 04: uh, would Johnson have been fired? [00:03:59] Speaker 08: If nothing else, I don't believe so, your honor. [00:04:01] Speaker 08: I think the department's clear that her statements to the media had nothing to do with their termination. [00:04:07] Speaker 04: So and I think the record supports you on that. [00:04:09] Speaker 04: I think arguably it would be a blatant misreading of the record to conclude otherwise. [00:04:15] Speaker 04: But that [00:04:16] Speaker 04: question of whether the record supports you on that is outcome determinative in my hypothetical. [00:04:22] Speaker 04: And we have to just say, I'm asking you, is that a question of fact that we don't have a jurisdiction on interlocutory appeal to consider? [00:04:30] Speaker 08: You have jurisdiction, again, because I believe it is blatantly contradicted by the record under Scott versus Harris. [00:04:35] Speaker 08: That's a very, very narrow exception. [00:04:37] Speaker 06: Yeah, but Scott versus Harris is you have a videotape and nothing to the contrary. [00:04:42] Speaker 06: We have nothing close to that here. [00:04:44] Speaker 08: I disagree, Your Honor. [00:04:45] Speaker 08: We only have two pieces of evidence in the record regarding Patton's knowledge. [00:04:49] Speaker 08: One is her statement that she knew nothing about the interview. [00:04:52] Speaker 08: And the second is a email received the day after the interview, April 28th, that said, I'm sorry, Ms. [00:04:59] Speaker 08: Johnson's going to be interviewed at some point in the future. [00:05:02] Speaker 08: No rational trial fact confined from that. [00:05:06] Speaker 08: that gave Patton notice that Johnson had been interviewed the day before. [00:05:11] Speaker 06: No, but the termination takes place sometime after that. [00:05:15] Speaker 06: There's a hearing officer who says termination is not appropriate here. [00:05:20] Speaker 06: All the facts, including the email facts, only support [00:05:26] Speaker 06: lesser reprimand or some kind of discipline and the decision makers here pushed for further consideration. [00:05:36] Speaker 06: And so that's part of what the district court is taking into account is that there's a kind of a re-decision on discharge. [00:05:44] Speaker 06: And there's no dispute that that's with knowledge of the interview. [00:05:50] Speaker 08: no, I believe that they didn't learn about her participation in the interview until this litigation your honor so that that is disputed but I do want to talk about the hearing examiner's recommendation for just a moment. [00:06:01] Speaker 08: I give that very very little weight and I think the court should give it very little weight because she did not understand the whistleblower protection Act. [00:06:07] Speaker 08: She suggested [00:06:08] Speaker 08: She believed that Miss Johnson was a whistleblower and yet she recommended that Miss Johnson be reprimanded or suspended. [00:06:15] Speaker 08: That is illegal under our Whistleblower Protection Act. [00:06:18] Speaker 08: If in fact Miss Johnson was a whistleblower, we could take no retaliatory action against her. [00:06:23] Speaker 08: We could take no adverse employment action. [00:06:25] Speaker 08: that hearing examiner fundamentally misunderstood our whistleblower protection act. [00:06:29] Speaker 08: So that recommendation was just based on a misunderstanding of the law. [00:06:33] Speaker 08: But again, if I could just briefly get back to my point on the second prong, whether the law was clearly established. [00:06:40] Speaker 08: The court does not need to look at the facts in this case on a granular level to look at that. [00:06:44] Speaker 08: I think there are only really two main facts [00:06:47] Speaker 08: that warrant consideration on the second prong. [00:06:50] Speaker 08: And that's the fact that Ms. [00:06:51] Speaker 08: Johnson was a correctional or law enforcement officer. [00:06:55] Speaker 08: And that fact's important because in the analysis, the government gets a little bit more deference in that context. [00:07:00] Speaker 08: And the second fact is that she disclosed confidential information. [00:07:04] Speaker 08: Those two facts alone, looking for clearly established law, [00:07:07] Speaker 08: Just taking those facts, Ms. [00:07:09] Speaker 08: Johnson hasn't identified a single case where a court in this country has found a First Amendment violation with respect to a law enforcement officer who has disclosed confidential information. [00:07:19] Speaker 08: There is not clearly established law that would suggest that it's a First Amendment violation to terminate her in those circumstances. [00:07:25] Speaker 08: In contrast, the district has identified authority from this court. [00:07:29] Speaker 08: where the court found those First Amendment violation where law enforcement officers disclose confidential information and the district has cited cases from other jurisdictions where there's been no First Amendment violation. [00:07:42] Speaker 08: There was no decision out there that would have put Booth and Patton on notice in this case that in firing Johnson as a correctional officer who disclosed confidential information would violate the Constitution. [00:07:52] Speaker 08: I think the court can render that decision and that would be dispositive here. [00:07:58] Speaker 04: Do you know how other HIPAA violations have been handled by the Department of Corrections? [00:08:03] Speaker 08: I don't know that there have been others. [00:08:05] Speaker 08: I know in this case, there was, I think, one email disclosed by the union president that may have contained information. [00:08:12] Speaker 08: I don't think the DOC was aware of that at the time. [00:08:15] Speaker 08: They haven't taken any corrective action since. [00:08:17] Speaker 04: But the point here, I think- Is the union president a DOC employee? [00:08:21] Speaker 08: He is. [00:08:21] Speaker 08: But the point I want to make, Your Honor, is even if he were offered up as a comparator, which Ms. [00:08:27] Speaker 08: Johnson has not done, the degree of her egregious violations of the HIPAA statute, I think, make her not comparable to him. [00:08:35] Speaker 08: And Patton was very clear that in her over 20 years in the DOC, she had never seen such an egregious violation of the district's confidentiality provisions. [00:08:44] Speaker 06: But this is unlike Bauman in the sense that in Bauman there was an investigation going on into, I think it was a hostage-taking situation, it was quite a serious situation that was separate from any investigation into Bauman's conduct. [00:09:00] Speaker 06: And there we also held that it was only for the period of time that [00:09:06] Speaker 06: that it would have been serious, that it was serious to disclose the recording. [00:09:10] Speaker 06: And here we don't have any actual investigation that suffered the Johnson's disclosure. [00:09:16] Speaker 08: And I don't think the district had to show an investigation. [00:09:19] Speaker 08: I think the Supreme Court was clear in Connick and this court was clear in Lafond that we only have to have a reasonable basis to believe that there may have been some impairment of the investigation. [00:09:29] Speaker 08: And [00:09:29] Speaker 08: And we did at the time. [00:09:31] Speaker 08: I mean, you look at the time frame, that incident notification email went out at 8.45 in the morning. [00:09:38] Speaker 08: 30 minutes later, it was sent to the union attorney and then that afternoon sent to a reporter. [00:09:44] Speaker 08: That day is when DOC began its investigation of the league. [00:09:48] Speaker 08: That's when we learned about that, right? [00:09:50] Speaker 08: And so in that time frame, we had every reasonable basis to believe that there may be an investigation happen in the future. [00:09:57] Speaker 08: This was a fresh new incident. [00:09:58] Speaker 08: It was just unfolding. [00:10:00] Speaker 08: And also, again, not to call into disputes of the factual record, but I would say, as I've argued in the brief, that on the face of that notice, there was going to be additional investigation. [00:10:09] Speaker 08: Video tape was sent over to a major to review, and the inmates were being referred for disciplinary proceedings. [00:10:14] Speaker 08: So again, I do take some issue with the notion that the record would support that. [00:10:19] Speaker 08: But putting that aside, we are not required to show we took an investigation in it. [00:10:23] Speaker 08: I think that's clear. [00:10:24] Speaker 06: Well, I'm just talking about you're analogizing it to Bauman and it seems like that was the court found to be really crucially important in terms of the balance on the employer side, the weightiness of the interest on the employer side. [00:10:37] Speaker 06: And here we don't have any examples of going after people for this kind of disclosure. [00:10:43] Speaker 06: I also, you know, and I can ask Mr. Hannum, but [00:10:48] Speaker 06: Johnson herself didn't publicly disclose the... I disagree, Your Honor. [00:10:53] Speaker 08: She disclosed it to Hannan and had no right to have... He disclosed it to Hannan. [00:10:57] Speaker 08: The law group had no right to have that information either. [00:10:59] Speaker 06: Well, if she is in her role as a union leader conferring with counsel to figure out what the recourse is for the people she represents... He does not have a right to confidential DOC information, Your Honor. [00:11:14] Speaker 08: There's no exception for the union's attorney to have access to this information. [00:11:20] Speaker 06: Where's the clearest place that I can find a policy about that? [00:11:24] Speaker 08: There's several policies that deal with it. [00:11:27] Speaker 08: None says the union attorney doesn't get the information. [00:11:29] Speaker 08: There's just no exception there. [00:11:31] Speaker 08: We've got the confidentiality agreement that she signed in November 2015. [00:11:35] Speaker 08: which again lists several categories, including incident reports as things that are to remain confidential. [00:11:40] Speaker 08: We have the FOIA policy. [00:11:41] Speaker 08: We have the email. [00:11:43] Speaker 07: There's also under the whistleblower act, there's a safe harbor. [00:11:46] Speaker 07: Oh, sure. [00:11:47] Speaker 07: Absolutely. [00:11:50] Speaker 08: And we're not disputing that, but she didn't follow the procedures under that safe harbor provision. [00:11:55] Speaker 08: Again, remember that safe harbor provision deals with disclosures to your own personal attorney for purposes of determining how to disclose the information. [00:12:04] Speaker 08: The handing group was not Ms. [00:12:06] Speaker 08: Johnson's personal attorney. [00:12:07] Speaker 06: No, they were her attorney in the role that she was playing, which was independent of. [00:12:11] Speaker 08: They did not represent her, they represented the union. [00:12:15] Speaker 08: She was also representing the union. [00:12:17] Speaker 08: But in addition to that, Your Honor, there are limited bodies that you can disclose that information to. [00:12:22] Speaker 01: Wait, was she a union representative? [00:12:24] Speaker 01: You're not answering my colleagues. [00:12:25] Speaker 08: Yes, she was absolutely. [00:12:27] Speaker 08: She was a union leader. [00:12:28] Speaker 08: She was the executive secretary of the union. [00:12:30] Speaker 08: But I'm saying that the union did not represent her in her individual personal capacity. [00:12:34] Speaker 06: No, but she was acting as a union leader in [00:12:38] Speaker 06: speaking out on behalf of the Department of Corrections. [00:12:43] Speaker 08: And I don't dispute that, Your Honor, but that did not give her license to disclose confidentiality. [00:12:48] Speaker 01: Are you counting her as a management person? [00:12:50] Speaker 08: I'm sorry? [00:12:51] Speaker 01: Are you counting her as a management person? [00:12:53] Speaker 08: She was a sergeant. [00:12:55] Speaker 08: She was in a leadership position. [00:12:56] Speaker 08: Oh, you mean within the union? [00:12:59] Speaker 08: Yes. [00:12:59] Speaker 01: In terms of confidentiality rules, [00:13:03] Speaker 01: I'm counting her as a management person who was bound by confidentiality rules. [00:13:08] Speaker 08: I'm counting her as a DOC employee who was bound by confidentiality rules. [00:13:13] Speaker 08: All DOC employees are subject to these provisions. [00:13:16] Speaker 08: But yes, she was in the leadership role. [00:13:18] Speaker 08: She was a Sergeant Lead Correctional Officer and had been so for some time, which again makes her, I think her conduct so much more egregious because she should have been aware of the DOC's policies on confidentiality. [00:13:29] Speaker 08: and had a role of advising junior staff members about that. [00:13:33] Speaker 06: So let me ask you, Ms. [00:13:36] Speaker 06: Anderson, if the evidence shows that there was a viewpoint-based retaliatory effort to punish Ms. [00:13:49] Speaker 06: Johnson because she was embarrassing the Bureau, the department, [00:13:58] Speaker 06: Where does that figure into the analysis? [00:14:00] Speaker 06: Does it have any role in balancing, like when you're looking at employer interest? [00:14:06] Speaker 06: And if the employer says, we have a really strong interest in HIPAA privacy, we have a really strong interest in non-disclosure of the identities of department employees in this, for example, in the use of force email, problematic. [00:14:27] Speaker 06: But if the reason that the employer is actually [00:14:32] Speaker 06: asserting its prerogatives in that situation is because it really is embarrassed and it's really angry at an employee. [00:14:41] Speaker 06: And I'm not saying that's these facts, but I'm just trying to understand where it does that. [00:14:48] Speaker 06: downgrade the substantiality, the heft of the employer's interest at balancing, or does it only come in when we're talking about motivating factor? [00:15:03] Speaker 08: I think it comes in at the third step, Your Honor. [00:15:06] Speaker 08: I think when you're looking at the [00:15:09] Speaker 08: Second step, the Supreme Court's been clear that the two things you're looking at are Ms. [00:15:15] Speaker 08: Johnson's interest in speaking to the public and the public's interest in hearing what she has to say. [00:15:19] Speaker 08: and then the government's interest in keeping the information confidential or taking corrective actions for the disclosure of that information. [00:15:26] Speaker 08: It's at step three where you get to what was the motivating factor in this case. [00:15:30] Speaker 08: And if you get past step three, there is some animus. [00:15:35] Speaker 08: There's been a determination that it was motivated at least in part by some improper animus. [00:15:40] Speaker 08: And that was what brings you to step four. [00:15:43] Speaker 08: And at step four, what we look at is would the employer have taken the same action anyway? [00:15:49] Speaker 08: And the district court I think found in this case that there was evidence, the district carried its burden to show by preponderance of the evidence that we would have taken the same action anyway. [00:15:58] Speaker 08: district court missteps was at the pretext stage where it didn't apply that, but for standard of causation merely found that animus could be a partial motivating factor in the case. [00:16:12] Speaker 08: And when you look at how, how do you show the, but for trauma, how does miss Johnson demonstrate that, that [00:16:19] Speaker 08: our real motivation was an improper reason. [00:16:23] Speaker 08: There's usually two ways you do that. [00:16:24] Speaker 08: You do that by showing that the reason given for the termination was illegitimate or false. [00:16:29] Speaker 08: And I don't think there's any dispute here about that. [00:16:32] Speaker 08: And the district court found that we had a legitimate basis for disciplining her. [00:16:37] Speaker 08: And then the second way you do it is by showing usually similarly situated comparators were treated differently. [00:16:42] Speaker 08: And Ms. [00:16:42] Speaker 08: Johnson's not offered up a similarly situated comparator that was treated differently. [00:16:46] Speaker 08: Nor is she pointed to any other evidence in the record that would suggest that the district's explanation here was pretextual. [00:16:53] Speaker 08: And I see that I've really eaten into my rebuttal time. [00:16:55] Speaker 06: No, no, no. [00:16:55] Speaker 06: I mean, as long as we're interested in asking questions, we don't hold it against you if you go over the time. [00:17:01] Speaker 06: So just circling back to make sure that I have your answer clear, if there is an asserted employee interest in speaking publicly on matters of public concern, and we look at what [00:17:14] Speaker 06: the context and what the person says and how it relates to what's going on in the world. [00:17:19] Speaker 06: And we say, okay, public concern. [00:17:21] Speaker 06: And the employer has [00:17:27] Speaker 06: policies on the books that it never actually enforces. [00:17:31] Speaker 06: People violate them day in, day out. [00:17:33] Speaker 06: Again, not this case. [00:17:34] Speaker 06: I'm just trying to get clear on the legal principle. [00:17:38] Speaker 06: But they say, these are really important policies of ours. [00:17:41] Speaker 06: The person violates, and they say, this is a violation. [00:17:43] Speaker 06: The employee says, yeah, I did actually technically violate that policy, but you're after me because you disagree with what I said. [00:17:53] Speaker 06: And so when you say that's your interest, [00:17:57] Speaker 06: It's actually not your interest. [00:18:00] Speaker 06: There's no role for that in that balancing inquiry. [00:18:05] Speaker 08: I don't think it's our interest in the information. [00:18:09] Speaker 08: I think that's an issue there and the impact of its disclosure on our governmental operations. [00:18:14] Speaker 08: So disclosing the names of employees. [00:18:19] Speaker 06: So the interest isn't really tied to the policy or not. [00:18:22] Speaker 06: It's just looking at sort of facts in the real world. [00:18:25] Speaker 08: I think it's timing. [00:18:26] Speaker 08: The policy exists because of the district's interest in those goals. [00:18:30] Speaker 06: So you're sort of pushing back though on my kind of formal, like, is it your interest or not? [00:18:33] Speaker 06: And you're saying, well, you look at. [00:18:36] Speaker 06: more functional? [00:18:38] Speaker 08: Again, I think so. [00:18:38] Speaker 08: And I think, again, to the extent that there's some improper motivation, that's taken into account at the third step of the Pickering test. [00:18:46] Speaker 08: I mean, we know no need for the third step if it was baked into the second already. [00:18:51] Speaker 08: And so I do disagree that that's the proper formulation of the analysis. [00:18:56] Speaker 01: What is it in your confidentiality rules, if I can understand better? [00:19:02] Speaker 01: that says a person who is a union official but has management responsibilities is prohibited from sharing information that that person properly has in hand with other union persons. [00:19:17] Speaker 08: Again, Your Honor, the confidentiality provisions are also in the collective bargaining agreement, which binds all union members, including union management, not to disclose information that the Department of Corrections designates as confidential or deems to be confidential. [00:19:31] Speaker 08: So that's a wholesale. [00:19:33] Speaker 01: Not to disclose, you're missing my question, not to disclose, obviously, this disclosure because she got the information to be able to disclose it. [00:19:42] Speaker 01: And she was involved with a committee of union people, right? [00:19:46] Speaker 03: Correct. [00:19:46] Speaker 01: And everyone knew that was part of her official responsibilities in the operation. [00:19:51] Speaker 08: Correct. [00:19:51] Speaker 01: What is it in the confidentiality rules, it says, in that kind of a situation, you, a union official, who properly have this information in hand, cannot share it with other union officials. [00:20:04] Speaker 08: It's not that she shared it with other union officials. [00:20:07] Speaker 08: It's that she shared it with a union attorney who is not an employee of the Department of Corrections. [00:20:12] Speaker 01: That's a simple question. [00:20:13] Speaker 01: I'm trying to figure out where it is you think she stepped away from the confidentiality. [00:20:18] Speaker 01: She had a right to be able to share it otherwise. [00:20:21] Speaker 08: She could share it with all the members of the union management team, who were all Department of Corrections employees, and who would have independently had access to the information. [00:20:30] Speaker 08: It's that it went to the union. [00:20:31] Speaker 08: But it didn't only just go to the union. [00:20:33] Speaker 08: If you look at Ms. [00:20:33] Speaker 08: Johnson's declaration, she knew when she gave it to the union that it was going farther than that, that it was going to be used in litigation and disclosed publicly. [00:20:42] Speaker 08: And it was, in fact, her emails were attached. [00:20:44] Speaker 00: No, I understand. [00:20:44] Speaker 00: I just am trying to understand the reach of the confidentiality. [00:20:48] Speaker 08: Certainly. [00:20:48] Speaker 08: anything outside the Department of Corrections or a Department of Corrections employee, Your Honor. [00:20:54] Speaker 06: And the case would have been a different case if she had [00:21:01] Speaker 06: If she had, it wouldn't have been a different case in your view. [00:21:04] Speaker 06: If she gave it to council and just said, of course, if this is going any further, you have to redact the names. [00:21:10] Speaker 08: No, I think the council wasn't entitled to it. [00:21:13] Speaker 08: I draw the line at anybody who's not a DOC employee without prior authorization. [00:21:16] Speaker 06: So it went to council and council never disclosed it to anyone, same result? [00:21:20] Speaker 08: I believe so, yes. [00:21:21] Speaker 08: It's outside of DOC and outside of DOC's control at that point. [00:21:25] Speaker 08: And we see what happens here. [00:21:27] Speaker 08: We have no control over the union attorney. [00:21:29] Speaker 08: He disclosed it to a reporter. [00:21:31] Speaker 08: sent it to Meakin and litigation, attached it to Dean's own litigation. [00:21:36] Speaker 08: So yes, and that's the very reason why we want to retain control of that information. [00:21:43] Speaker 06: So if Booth and Patton were looking at our circuit precedent at the time that they acted in this case to decide whether they could fire Johnson just based on her emails, [00:21:56] Speaker 06: what would be the best case? [00:21:58] Speaker 08: I mean, I think Bowman and Braderman are the two cases. [00:22:00] Speaker 08: I think Braderman is more helpful to our position, but those are the two cases in the circuit. [00:22:07] Speaker 08: But again, when we're looking at clearly established law, we're looking for law that says it's unconstitutional in these circumstances to take this course of action. [00:22:15] Speaker 08: And it's Ms. [00:22:16] Speaker 08: Johnson's burden. [00:22:16] Speaker 08: It's not the district's burden, or I'm sorry, I'm representing individuals here. [00:22:21] Speaker 08: It's not my client's burden to identify cases that support what they did. [00:22:24] Speaker 08: Right, I understand. [00:22:25] Speaker 08: I just wanted to know [00:22:26] Speaker 08: position on the law that you're relying on would be the two circuits. [00:22:30] Speaker 08: And then I've cited a few other decisions from other circuits. [00:22:33] Speaker 08: Again, as I say, I'm unaware of any case where the court has found firing an officer for disclosing confidential information. [00:22:41] Speaker 08: In the course of speaking as a citizen on an issue of public concern is unconstitutional. [00:22:46] Speaker 08: And with that, your honor, if there are no further questions, I would hopefully have a couple minutes for rebuttal. [00:22:52] Speaker 08: Thank you. [00:22:54] Speaker 06: Mr. Hannon? [00:23:00] Speaker 02: Good morning, Your Honor, and may it please the court. [00:23:04] Speaker 02: This is clearly a factually intensive and densely factually intensive case, but the outcome is very logical and understandable. [00:23:16] Speaker 02: Let me talk first about a point that Your Honor made, Judge Pollard, that is [00:23:21] Speaker 02: Things sort of started over again when we got to the first hearing examiner's decision on June 30th. [00:23:29] Speaker 02: The process administratively is that the proposal for removal goes to a hearing officer who receives written and personal presentation from Ms. [00:23:40] Speaker 02: Johnson. [00:23:40] Speaker 02: At the conclusion of that, this attorney wrote an opinion saying that two things, two important things, [00:23:49] Speaker 02: that Miss Johnson's disclos [00:23:58] Speaker 02: And secondly, that her firing was retaliatory. [00:24:03] Speaker 02: Now, imagine these facts going to a jury, which on the status of the case now, they will. [00:24:11] Speaker 02: Where does that come from? [00:24:12] Speaker 02: That comes from the confidentiality agreement that the government relies upon that Ms. [00:24:17] Speaker 02: Johnson signed at the beginning of her 30-year career. [00:24:21] Speaker 02: And at the end of that confidentiality agreement, it says quite expressly, these restrictions do not apply to the District of Columbia whistleblower statute. [00:24:32] Speaker 02: You are free to do so. [00:24:34] Speaker 04: Why did the hearing board say that Johnson could be punished? [00:24:39] Speaker 04: I missed the question, Your Honor. [00:24:40] Speaker 04: Why did the hearing board say that Johnson could be punished? [00:24:44] Speaker 02: That is the hearing examiner. [00:24:47] Speaker 02: So in the first instance, she suggested that there might be some minor punishment. [00:24:57] Speaker 04: That seems an odd suggestion, if Johnson did nothing wrong. [00:24:59] Speaker 04: And if, as you just said, the hearing examiner concluded that Johnson did nothing wrong. [00:25:06] Speaker 02: Well, Your Honor, let me pose the following to try to explain the reasoning of the hearing examiner. [00:25:15] Speaker 02: After that process, Mr. Booth had his people write a remand order, which Judge Contreras found to be highly irregular, and he cited the cases saying that if the [00:25:29] Speaker 06: I think the question was prompted by Ms. [00:25:35] Speaker 06: Anderson's point that if there's a carve out, if there's a safe harbor under the whistleblower act, then it may have been an irrelevant error because the hearing officer isn't imposing an alternative [00:25:52] Speaker 06: sanction, but the hearing officer said what seems to be erroneous, that if there's a safe harbor, then no discipline would be imposed. [00:26:02] Speaker 06: And so I guess the question is, how do you address what, does that suggest that the hearing officer was otherwise off track or somehow misunderstanding the nature of the safe harbor? [00:26:14] Speaker 02: What the hearing officer did and what Mr. Booth did with respect to the hearing officer is grist for the middle of what the jury is going to hear. [00:26:23] Speaker 02: If the government can explain why the hearing officer did that, they can try to do that before the jury. [00:26:28] Speaker 04: But the important issue that I was trying to reach... I'm getting from your answer that you cannot explain why the hearing officer would suggest discipline while finding that Ms. [00:26:40] Speaker 04: Johnson did nothing wrong. [00:26:41] Speaker 04: And if you can't explain why the hearing officer would do that, it strikes me that the hearing officer's determination is pretty inexplicable. [00:26:52] Speaker 02: Well, I don't think it's inexplicable given the fact that the Whistleblower Protection Act allows everything that was done here. [00:27:00] Speaker 02: The issue of penalty [00:27:02] Speaker 02: I can't explain why she did that except perhaps she wishes as a government employee for the District of Columbia to try to give something back to the government. [00:27:16] Speaker 02: And let's look to what she did the second time, which is really I think important to answer your point. [00:27:21] Speaker 02: Booth did his reband. [00:27:24] Speaker 02: He gave her soup to nuts about HIPAA and everything else. [00:27:29] Speaker 02: And her next decision was, well, and this goes to Judge Edwards' point, she gave it to her lawyer, Mr. Hannon. [00:27:38] Speaker 02: Mr. Hannon represents the union. [00:27:41] Speaker 02: He didn't represent her [00:27:46] Speaker 02: So here giving it to me was a violation. [00:27:50] Speaker 02: And then my passing it on to the press, she's responsible for that because I represent her. [00:27:58] Speaker 02: That's the gist of the second decision by the hearing officer. [00:28:02] Speaker 04: Let me change the tack a little bit. [00:28:05] Speaker 04: Yes, sir. [00:28:07] Speaker 04: Do you know of any case in this circuit or Supreme Court [00:28:14] Speaker 04: where the court found a First Amendment violation after a law enforcement officer disclosed confidential information? [00:28:25] Speaker 02: On that description, I can't think of one. [00:28:33] Speaker 04: And same answer if we expand beyond this circuit? [00:28:36] Speaker 02: I can't think of when you have one in mind, apparently. [00:28:40] Speaker 04: No. [00:28:41] Speaker 04: I was wondering if you did. [00:28:44] Speaker 04: Let me ask a separate question. [00:28:52] Speaker 04: How do you show causation? [00:28:56] Speaker 04: How should the court think about causation at step four of the Pickering Analysis? [00:29:04] Speaker 02: Well, miss Anderson asked you to impose a but for standard and it's it doesn't appear anywhere in case law. [00:29:15] Speaker 02: It doesn't appear anywhere. [00:29:17] Speaker 02: in jury instructions that are found in the various different circuits. [00:29:22] Speaker 02: But in any event, I would commend to the court a 2020 decision of Justice Gorsuch in Bostock versus Clayton City, Georgia. [00:29:33] Speaker 02: It was in a little bit of a different context. [00:29:36] Speaker 04: A little bit? [00:29:38] Speaker 02: Well, it was a discrimination case, but it talked about but for and what does but for mean. [00:29:44] Speaker 02: And the argument that Miss Anderson is making here is that if the standard is but for, but for means solely. [00:29:51] Speaker 02: So Miss Anderson would want the judge to have to decide the fourth factor and inevitably the jury by requiring Miss Johnson to counter the government's arguments that they would have fired her in any event. [00:30:08] Speaker 02: which they have to meet by preponderance of the evidence. [00:30:11] Speaker 02: But at that point, Ms. [00:30:12] Speaker 02: Johnston must prove, oh, no, it was only solely because of my speech. [00:30:18] Speaker 02: And that standard doesn't appear anywhere in the law. [00:30:20] Speaker 02: It increases the standard that is imposed under the third factor. [00:30:26] Speaker 02: And it also is [00:30:28] Speaker 02: not what we think it is. [00:30:29] Speaker 04: I take her standard to be a little bit different, not too far from what you said, a little bit different. [00:30:34] Speaker 04: I take her standard to and by that, I mean, Ms Anderson's proposed standard to be there's no causation unless the government would have fired the employee, um, absent, uh, the, um, [00:31:00] Speaker 04: Sorry, after absent the unprotected conduct. [00:31:04] Speaker 04: Protected. [00:31:05] Speaker 04: Right. [00:31:05] Speaker 04: Sorry. [00:31:06] Speaker 04: Would a fire the employee absent the protected conduct? [00:31:08] Speaker 02: And at that stage, Ms. [00:31:10] Speaker 02: Johnson has to show it was protectual. [00:31:13] Speaker 04: And that then to show whether it's protectual or not requires that either the purportedly legitimate reason be a not legitimate reason or that there's a similarly situated comparator who was treated differently. [00:31:26] Speaker 02: Well, there were no others that were treated the same way as she was. [00:31:30] Speaker 04: And were there any similarly situated comparators who were treated differently than her? [00:31:34] Speaker 04: There's no way to know. [00:31:36] Speaker 04: So have you identified any similarly situated comparators treated differently than her? [00:31:41] Speaker 02: There's no way. [00:31:41] Speaker 02: They acknowledge they haven't disciplined anyone. [00:31:44] Speaker 02: And that goes to our side of the fulcrum here. [00:31:48] Speaker 04: So then my inartful articulation of the test, but as Judge Pillard artfully corrected, that is the correct test, correct? [00:31:58] Speaker 04: The way that Judge Pillard helped me articulate the test for causation, that is the correct standard. [00:32:05] Speaker 02: They have a preponderance standard to prove they would have done it anyway. [00:32:10] Speaker 02: And if they meet that standard, this is a jury question. [00:32:14] Speaker 02: The jury is told if they meet that standard, then she needs to rebut it by the same standard of evidence. [00:32:20] Speaker 02: It's not but for. [00:32:21] Speaker 04: Did the Department of Corrections retain [00:32:25] Speaker 04: any people who gave press conferences or interviews around this time criticizing the Department of Corrections handling of COVID. [00:32:33] Speaker 02: Retain? [00:32:34] Speaker 04: Yes. [00:32:35] Speaker 02: They didn't discipline any others. [00:32:42] Speaker 06: Good. [00:32:42] Speaker 06: Let me ask you, so there are two different [00:32:48] Speaker 06: buckets of speech that are in play. [00:32:52] Speaker 06: One is emails, including the use of force email, and the other is the media interface. [00:33:01] Speaker 06: And I take the government, and they can correct me on rebuttal if they want, but I take the government to agree that the interviews were a protected expression in Ms. [00:33:10] Speaker 06: Johnson's personal capacity and that their dispute with you is over whether the interviews played a sufficient role or any role in Johnson's firing. [00:33:24] Speaker 06: For you, based on the evidence in the record and inferences favorable to your client, could a reasonable fact finder conclude that the media interviews alone caused her firing? [00:33:37] Speaker 02: That the media interviews alone caused the firing? [00:33:44] Speaker 06: No, not on this record because- Your case depends on a ruling that Johnson had a First Amendment right to forward the emails? [00:33:53] Speaker 02: Uh, no, I think that's, I think that's a little bit of a different issue. [00:33:58] Speaker 06: And in this case, my question to you, how are the two related? [00:34:01] Speaker 06: Are they related? [00:34:02] Speaker 06: So she forwarded work emails in violation of bureau policy. [00:34:07] Speaker 06: That was a stated cause for the firing. [00:34:12] Speaker 06: Do you have to, in order to prevail, do you have to. [00:34:16] Speaker 06: show that she had a First Amendment right to forward those emails, or can you say, well, whatever happens with emails, independently, we have a First Amendment claim based on the interviews and their reaction to the interview. [00:34:27] Speaker 02: My position, Your Honor, is that the forwarding of the email to her attorney is not a violation of anything, because under her confidentiality agreement, she's specifically authorized to blow the whistle. [00:34:42] Speaker 02: So there's no violation of any policy to begin with. [00:34:47] Speaker 02: And as Judge Contreras noted, if they felt serious about this issue of confidentiality, they would be marked. [00:34:57] Speaker 02: if they felt serious about HIPAA, the HIPAA warnings would have been included in all of these issues as well. [00:35:04] Speaker 02: If you're going to talk about the evidence in the light most favorable to Ms. [00:35:08] Speaker 02: Johnson, what I would say about Judge Contreras, he's a very balanced judge. [00:35:12] Speaker 02: He does not call somebody's argument unreasonable or specious or imaginary, but he does rule. [00:35:21] Speaker 02: Go ahead, you can finish your sentence. [00:35:22] Speaker 02: So if you look at the evidence in the light most favorable to Ms. [00:35:25] Speaker 02: Johnson, [00:35:26] Speaker 02: What I see is what the Supreme Court has talked about as an imagined government interest to try to squash her First Amendment rights or a specious government interest. [00:35:41] Speaker 02: Barron versus Pelletier talks about that. [00:35:44] Speaker 02: When we're talking about qualified immunity, we have two things to balance here. [00:35:49] Speaker 02: On the one hand, we have we don't want to subject a government official to a trial where they might have immunity. [00:35:56] Speaker 02: And on the other hand, and the cases make this clear, we don't want the government to be posing specious and imagined government interests when somebody is exercising the First Amendment right, as is clearly the case at this point. [00:36:14] Speaker 02: And so if we were going to treat everything in the light most favorable to Ms. [00:36:18] Speaker 02: Johnson, what we would say is, [00:36:22] Speaker 02: They targeted her. [00:36:23] Speaker 02: They swiftly went after her. [00:36:25] Speaker 02: They honed all of the rules and regulations to see if they could find some that she violated. [00:36:31] Speaker 02: They then created a notice of removal, finding her to have violated fictitious confidentiality rules. [00:36:44] Speaker 02: Now, just compares doesn't follow that. [00:36:47] Speaker ?: Go ahead. [00:36:47] Speaker 01: You conflating the confidentiality. [00:36:49] Speaker 01: Do you assume that there can be no valid confidentiality rules pursuant to which an employee, a management person, knows? [00:36:58] Speaker 01: I can't talk about that. [00:36:59] Speaker 02: Oh, no, I agree with that entirely. [00:37:00] Speaker 01: There are confidentiality rules. [00:37:01] Speaker 01: So, wait, you mean roughing them all together? [00:37:03] Speaker 02: Well, if you release the information pursuant to the D.C. [00:37:08] Speaker 02: Whistleblower Act, [00:37:09] Speaker 02: You're specifically authorized to do that. [00:37:12] Speaker 01: Is there a process you follow if you're going to be pursuing the whistleblower act? [00:37:16] Speaker 01: Was that process followed here? [00:37:18] Speaker 02: No, sir. [00:37:19] Speaker 02: Imposing an internal administrative process before someone becomes a whistleblower is not part of the folklore. [00:37:25] Speaker 02: And HIPAA, by the way, not part of the fulcrum, not part of the process within the administration. [00:37:32] Speaker 02: A whistleblower doesn't go to the supervisor and say, I'm going to send this information to our lawyers because people are dying in the jail. [00:37:42] Speaker 02: So there are rules of confidentiality [00:37:46] Speaker 01: Right. [00:37:46] Speaker 02: If you want to know on the facts of this case, whether there are any rules of confidentiality that relate to the use of force email, for example, the answer is no, because it wasn't marked confidentially. [00:38:01] Speaker 02: Were any of the documents... Did the policy require that it be marked? [00:38:05] Speaker 05: Yes, it does. [00:38:06] Speaker 05: It required that it be specifically marked to be covered. [00:38:08] Speaker 05: Absolutely. [00:38:09] Speaker 05: Do you have a JA site for that? [00:38:10] Speaker 05: Absolutely. [00:38:12] Speaker 01: Is there a JA site for that? [00:38:14] Speaker 01: Do I have a citation? [00:38:15] Speaker 06: In the appendix where we can see the policy requiring that? [00:38:20] Speaker 02: Yes, it's under the rules of the Department of Corrections. [00:38:26] Speaker 02: And I can't cite the point in the appendix, but they talk specifically about having to mark items confidential that are confidential outside of HIPAA. [00:38:36] Speaker 02: And then they have very specific regulations requiring marking HIPAA. [00:38:41] Speaker 02: And they found her to have violated HIPAA, yet they don't recognize, and it's an administrative regulation. [00:38:50] Speaker 02: An administrative regulation permits Ms. [00:38:53] Speaker 02: Johnson to provide the information to me, very specifically. [00:38:57] Speaker 02: To provide? [00:38:58] Speaker 02: To provide the information to an attorney. [00:39:01] Speaker 02: Personal attorney? [00:39:03] Speaker 02: to an attorney that represents, I can't remember the language, but it represents her or a colleague or somebody of interest with her. [00:39:12] Speaker 01: But that doesn't mean there's no confidentiality rule in place, even though she can talk with an attorney, there can still be a confidentiality rule which says with respect to this kind of an information, and you may think you're going to be in trouble, so you want to talk to your attorney, you can, but you can't go out and share it. [00:39:30] Speaker 01: That's against the rules of this operation, this government operation. [00:39:35] Speaker 01: uh that's their claim you seem to be saying there's no such thing as a confidentiality rule here uh no i'm not understanding i'm not if it's if it's legitimate let's assume it's legitimately marked as a HIPAA confidential document you can have a confidentiality rule it's not HIPAA [00:39:57] Speaker 01: I'm not going to go into that. [00:39:59] Speaker 01: The question in this case is, was there a confidentiality rule that was breached? [00:40:04] Speaker 01: Did the district court say there was none? [00:40:09] Speaker 02: It cited that as an interest of the District of Columbia to be balanced against her First Amendment right. [00:40:18] Speaker 02: And it discussed basically the two prongs of their interest, one with respect to the use of force email. [00:40:25] Speaker 02: They said that the use of force email is confidential because it's a pre-investigatory document. [00:40:32] Speaker 02: And he dispensed with that because there was no investigation conducted at all. [00:40:38] Speaker 02: And then the other part is the medical side of things, the HIPAA side of things. [00:40:42] Speaker 02: And I'm not making myself clear, but let me try again. [00:40:46] Speaker 02: Let's take the generic Department of Corrections confidentiality requirement on medical information. [00:40:54] Speaker 02: And let's assume it's marked. [00:40:56] Speaker 02: So if it's marked and it has to do with medical information for an inmate, then it would be a violation to disclose it unless you're doing so under the [00:41:10] Speaker 02: DC whistleblower statute, which in her confidentiality agreement expressly permits her to do that. [00:41:19] Speaker 02: And the HIPAA regulation, which is in the CFR and it's cited in our papers, that regulation similarly makes it clear that someone in a workplace can provide information about the potential death [00:41:32] Speaker 02: of inmates and correctional guards to an attorney, which is what was done in this case. [00:41:39] Speaker 02: Now, the District of Columbia tries to have it both ways. [00:41:44] Speaker 02: At one point, they try to say, I'm not a lawyer and HIPAA doesn't apply. [00:41:48] Speaker 02: And then in the next instance, they say, well, I am a lawyer. [00:41:52] Speaker 02: So the disclosure to the press is my problem. [00:41:55] Speaker 06: Those aren't necessarily in conflict because they're saying you're not her lawyer for purposes of you being effectively her for purposes of obtaining this confidential information, but you are a conduit of hers. [00:42:07] Speaker 06: It doesn't matter whether you're her lawyer or not, that you're someone that she... [00:42:12] Speaker 06: I assume you've talked to your client about this, but it seems like you have a conflict in this appeal potentially because there are aspects that you're actually involved in that could have shielded her in arguments that haven't been raised. [00:42:27] Speaker 02: Well, I appreciate that. [00:42:29] Speaker 02: And the point I think that needs to be made with respect to that is that there's no question that Ms. [00:42:34] Speaker 02: Johnson had no idea that I was going to send this to the press. [00:42:38] Speaker 02: No question about it. [00:42:39] Speaker 02: That's a fact. [00:42:40] Speaker 06: Is that in the record? [00:42:41] Speaker 06: Is there a declaration from the record? [00:42:43] Speaker 02: It is in the record. [00:42:44] Speaker 06: It is in the record? [00:42:47] Speaker 02: I don't have it at my fingertips, but there's no dispute about the fact that I believe it's in the hearing officer's report. [00:42:54] Speaker 02: There's no dispute about it that she didn't know. [00:42:57] Speaker 02: And the hearing officer in the second decision held her responsible for that because she was under the rules of professional responsibility going to assume that since her lawyer did it, [00:43:09] Speaker 04: I don't understand how we can consider that fact as a fact on the record if you can't identify where it is in the record. [00:43:18] Speaker 04: It's not like... [00:43:22] Speaker 04: we can take advantage of the unusual situation where the fact witness is also her appellate lawyer and then find some facts here at the appellate argument. [00:43:30] Speaker 02: It certainly in everything that we wrote and presented to the hearing officer and my recollection is she wrote that in her decision, which is a 366 I think in the appendix and Miss Anderson can dispute me, but I don't believe that that her side. [00:43:46] Speaker 02: I think in a brief, she actually indicated that, so. [00:43:49] Speaker 04: Ms. [00:43:49] Speaker 04: Johnson sent you the use of force email and the emails with the HIPAA information, correct? [00:43:57] Speaker 04: Repeat that. [00:43:58] Speaker 04: Ms. [00:43:58] Speaker 04: Johnson sent you the use of force email? [00:44:01] Speaker 04: Correct. [00:44:02] Speaker 04: And the emails with the HIPAA information, correct? [00:44:06] Speaker 02: Yes. [00:44:07] Speaker 02: Or myself or my partner. [00:44:10] Speaker 04: If the First Amendment does not prohibit [00:44:16] Speaker 04: the government from firing Ms. [00:44:18] Speaker 04: Johnson for doing that, do you lose your First Amendment claims in this case? [00:44:29] Speaker 02: That's an interesting question. [00:44:31] Speaker 02: And of course, it assumes the outcome. [00:44:35] Speaker 02: And in addressing that, what I'd like to point out is that [00:44:40] Speaker 02: The government in its opposition to our motion to dismiss it in their cross-motion for summary affirmance, they say that they agree with you. [00:44:51] Speaker 04: I read their motions, but I'm asking, I know you don't agree with the premise that the first amendment does not prohibit the government from firing Ms. [00:45:01] Speaker 04: Johnson. [00:45:02] Speaker 04: I know you don't agree with that premise, but if you can assume that premise, [00:45:07] Speaker 04: Do you lose your First Amendment claims in this case? [00:45:11] Speaker 02: I got it. [00:45:12] Speaker 02: So here's the issue for the court in my view. [00:45:16] Speaker 02: even though the opening brief for the government relied on factual disputes, right? [00:45:20] Speaker 02: And they've now changed their position. [00:45:21] Speaker 02: They're telling you, oh, no, it can't be a factual dispute. [00:45:24] Speaker 02: So here's what the position, I believe, is for this court and why this court should not exercise jurisdiction. [00:45:29] Speaker 02: The argument being made here is that when the trial judge does the balancing and comes out in favor of there being a First Amendment violation, looking at both sides of the case, because there's a qualified immunity claim in there, [00:45:45] Speaker 02: those who didn't receive qualified immunity for whom it was denied, because of the factual determination under the First Amendment prong, if it goes to the Court of Appeals and you disagree, not only is the qualified immunity decision wrong, but the First Amendment claim has to be dismissed as well. [00:46:04] Speaker 02: So that's where you're headed, I believe. [00:46:08] Speaker 02: And in my view, that violates the final order rule, allowing qualified immunity, which can come to the court on very limited circumstances, where there's no dispute as to the fact, to then carry the day with respect to a decision against the government. [00:46:26] Speaker 02: They lost on summary judgment on their first amendment. [00:46:29] Speaker 04: I think I have your answer. [00:46:30] Speaker 04: And I think it's that even if [00:46:32] Speaker 04: sharing the emails with you was unprotected conduct. [00:46:39] Speaker 04: Conduct unprotected by the First Amendment. [00:46:44] Speaker 04: You can still win on your First Amendment claims because... If it's unprotected conduct... If the email forwarding was unprotected conduct... Under the First Amendment... [00:46:55] Speaker 06: I think this is related to a question I asked earlier. [00:46:58] Speaker 06: You can correct me if I'm wrong, but that I don't think you answered, which is if the provision of the emails is not protected. [00:47:08] Speaker 06: In other words, we've heard your safe harbor arguments. [00:47:11] Speaker 06: We're just trying to understand how the different pieces of the case really fit together. [00:47:15] Speaker 06: If we were to hold that [00:47:20] Speaker 06: either the defendants are qualifiedly immune on the emails or that the record doesn't support Johnson's claim on the emails. [00:47:32] Speaker 06: Is there a separate claim, First Amendment claim, based on the interviews? [00:47:39] Speaker 06: And if so, how do you respond to Ms. [00:47:43] Speaker 06: Anderson's argument that there's no record evidence that the decision makers were ever even aware of those interviews when they made the decision and reaffirmed the decision to fire Ms. [00:47:55] Speaker 06: Johnson? [00:47:57] Speaker 02: You need to focus on the April 27th interview? [00:48:01] Speaker 02: And the only evidence on the government side was Ms. [00:48:06] Speaker 02: Patton's declaration, which was prepared by counsel, and Judge Contreras examined that very, very carefully. [00:48:13] Speaker 02: And he concluded that her declaration wasn't sufficient to demonstrate that she or anyone [00:48:21] Speaker 02: had made the decision to remove Ms. [00:48:25] Speaker 02: Johnson before April 27th. [00:48:28] Speaker 02: And he cited to the subsequent conduct, the presentation of the information to the human resources folks, the creation of the report by the lawyers, coming back to Ms. [00:48:39] Speaker 02: Patton and her signing a notice. [00:48:42] Speaker 02: Now part of that I hesitate to point out is that [00:48:45] Speaker 02: when she when Miss Patton signed that notice it was just a notice she did not express any opinion whatsoever about whether she should be removed or not or had done so at any other time. [00:48:58] Speaker 02: So what I think you would have to do your honor is you would have to reject the [00:49:06] Speaker 02: evidentiary finding that Judge Contreras made with respect to that. [00:49:10] Speaker 02: On its face he says it doesn't say that and in the light of subsequent conduct it doesn't say that and he doesn't say this is pretextual or doesn't say this is something a lawyer did. [00:49:23] Speaker 02: What he says is that the jury can either conclude [00:49:27] Speaker 02: that they had made a decision before or they could conclude in her favor they hadn't made a decision before. [00:49:35] Speaker 02: I also want to comment here on that case law. [00:49:39] Speaker 02: Ms. [00:49:39] Speaker 02: Anderson says that the case law says if a removal is quote contemplated before the actual protected [00:49:48] Speaker 06: I think the more challenging record question for you is she's asserted that there is no evidence in the record that the decision makers were aware at any time, even before the remand to the hearing officer, [00:50:06] Speaker 06: of the May 1st publication of the interview results of the interview that she gave on April 27th. [00:50:13] Speaker 06: And what is your response on that? [00:50:18] Speaker 02: The only evidence, as Ms. [00:50:20] Speaker 02: Anderson has indicated, is the declaration of Ms. [00:50:22] Speaker 02: Patton. [00:50:23] Speaker 06: So you have to have affirmative evidence on which a jury could depend. [00:50:28] Speaker 06: If I'm the fact finder and I'm trying to decide, OK, maybe I disbelieve that declaration, but what am I depending on other than speculation that these decision makers learned of? [00:50:42] Speaker 02: It wasn't speculation. [00:50:45] Speaker 06: I want you to tell me why not. [00:50:46] Speaker 02: Because the trial judge, Judge Contreras, looked at the facts of the case. [00:50:52] Speaker 02: He said first, her declaration doesn't say what counsel says it says. [00:50:57] Speaker 02: And the second focus they took was the subsequent activities of what transpired before the notice was actually sent, indicating that there's no way to know when it was contemplated that she's going to be fired. [00:51:15] Speaker 02: But I don't think that the case law [00:51:17] Speaker 02: that the government describes with respect to this contemplation that if you if you contemplate something before you know of the protected, I don't think that just put that aside. [00:51:28] Speaker 02: Yes, sir. [00:51:28] Speaker 04: Mr. Hand. [00:51:30] Speaker 04: I'm at J. A. [00:51:31] Speaker 04: 5 19. [00:51:31] Speaker 04: It's paragraph 33. [00:51:33] Speaker 04: This is this is Miss Patton. [00:51:37] Speaker 04: I have never seen footage of any interview Sergeant Johnson participated in and have no knowledge of whether it took place, what statement Sergeant Johnson made, or when, if ever, it was published. [00:51:53] Speaker 04: What in the record contradicts that? [00:51:56] Speaker 06: Isn't it the April 28th, there's a, maybe it was you, attorney for the union notifying the department that Johnson was going to give this interview? [00:52:05] Speaker 02: Yes. [00:52:07] Speaker 06: You haven't mentioned that. [00:52:08] Speaker 02: Sorry? [00:52:10] Speaker 06: You have not mentioned that in response to our questions. [00:52:14] Speaker 02: Yes. [00:52:15] Speaker 06: So they were... She's going to be talking to the press about this crisis in the prisons, in the jail. [00:52:24] Speaker 02: Yes. [00:52:25] Speaker 06: That would be one way that they know, that she's given an interview. [00:52:28] Speaker 02: Well, I don't think the issue is what you posed respectfully, because I think the issue is whether she contemplated before April 27th. [00:52:40] Speaker 04: I know that's the issue. [00:52:41] Speaker 04: Okay. [00:52:42] Speaker 04: And I will give that thought and reflect on whether that should be the issue. [00:52:48] Speaker 04: A different issue that I'm trying to figure out the answer to right now is [00:52:53] Speaker 04: In light of this statement that I read that Sergeant Johnson had no knowledge of whether any interview took place, no knowledge of what statements were made, is there anything in the record [00:53:10] Speaker 04: that contradicts that, I understand that the April 20th email put Ms. [00:53:16] Speaker 04: Patton on notice that there would be an interview, but that email did not say what statements Sergeant Johnson made, or even if the interview ended up taking place, as it happened that it had taken place the day before, but it air-refused. [00:53:32] Speaker 04: So assume, for the sake of my question, I think that April 28th email [00:53:38] Speaker 04: does not contradict this paragraph 33 statement. [00:53:42] Speaker 04: Is there anything else in the record that you think contradicts this paragraph 33 statement by Ms. [00:53:49] Speaker 04: Patton? [00:53:50] Speaker 02: Judge Contreras, based on those portions of her declaration, found that certain of the disclosures that were part of count one, the DC whistleblower complaint, the DC whistleblower complaint could not be proven. [00:54:06] Speaker 02: So he did take that into consideration. [00:54:09] Speaker 02: My point is that it's not relevant to the First Amendment. [00:54:13] Speaker 02: balancing because that had to do with the argument that the government's making that because there was a contemplation of removal before the interview that they're protected. [00:54:27] Speaker 02: So yes, Judge Contreras took note of that by striking some of the disclosures that underlie the DC whistleblower statute claim. [00:54:38] Speaker 04: And how does what [00:54:40] Speaker 04: How does any of that contradict Sergeant Johnson's statement that she has no knowledge of what statement Sergeant Johnson made in the interview? [00:54:53] Speaker 04: I don't know what interview that's referring to. [00:54:55] Speaker 04: The April 27th interview that aired on USA 9 on, I think, May 1st. [00:55:03] Speaker 02: I don't think that modifies my answer because if that was relevant to the anticipated removal or [00:55:16] Speaker 02: contemplated removal argument, then Judge Kacharis would have commented upon that. [00:55:23] Speaker 04: I will say, I think you're giving the best answers that the record probably allow you to give, so I don't fault you for the answers. [00:55:30] Speaker 04: I don't know how we will decide this case. [00:55:34] Speaker 04: I don't know who will write it. [00:55:35] Speaker 04: But if I were to write in this case, here's what I would say. [00:55:38] Speaker 04: I would say counsel for Ms. [00:55:39] Speaker 04: Johnson was unable to identify anything in the record [00:55:44] Speaker 04: showing that Sergeant Johnson had ever seen what statements, sorry, that Patton had ever seen what statements Sergeant Johnson made in the WUSA 9 interview conducted on April 27. [00:56:00] Speaker 04: Would that be a fair statement in my opinion? [00:56:02] Speaker 04: Forgive me. [00:56:04] Speaker 02: because it's not relevant to the First Amendment. [00:56:10] Speaker 02: Okay, I think we have your answer. [00:56:12] Speaker 02: Because that doesn't make a difference. [00:56:14] Speaker 02: If she contemplated removing her before the 28th and all this other events took place, [00:56:25] Speaker 02: That's not going to carry the day as far as the law is concerned because Judge Contreras made factual determinations that her declaration about when she contemplated removing doesn't prove that legal principle. [00:56:40] Speaker 06: That removes her defense. [00:56:42] Speaker 06: It doesn't make your case. [00:56:45] Speaker 06: I mean, Judge Contreras does say [00:56:47] Speaker 06: that the emails are not everything. [00:56:50] Speaker 06: Johnson expressed her dissatisfaction with the Department of Corrections response to COVID in other ways that have nothing to do with the emails, including her late April interview with a local news station. [00:57:01] Speaker 06: So he does rely on that. [00:57:03] Speaker 06: And I suppose we have to go back and come through and see where he connects the dots that they were aware of that. [00:57:11] Speaker 02: Forgive me, but it doesn't make a difference on the First Amendment analysis with respect to the legal argument of a previous decision to fire her before. [00:57:22] Speaker 06: Previous decision to fire, we're putting that aside. [00:57:24] Speaker 06: Imagine we are convinced by your argument that there was no previous decision, that the decision, or that even if there were, they remade the decision later [00:57:36] Speaker 06: When they said to the hearing officer, no, you can't reverse the termination. [00:57:42] Speaker 06: You should support the termination. [00:57:44] Speaker 06: That all happened afterwards. [00:57:46] Speaker 06: So put aside their effort to say, oh, everything we decided was before April 27th. [00:57:53] Speaker 06: Just put that aside. [00:57:55] Speaker 06: I assume that's not in the case. [00:57:57] Speaker 06: Then the question is, well, still do... [00:58:00] Speaker 06: Do we have evidence on which a fact finder could say, ah, but by the time they later made the decision and carried it through to fruition, they did know about more than the emails. [00:58:12] Speaker 06: They knew the interview she gave in late April to the local news station. [00:58:16] Speaker 06: And in fact, it's fair to say that was a motivating factor in the decision, and they wouldn't have made it but for. [00:58:23] Speaker 02: And I'm supposed to ignore the June 30th decision the hearing officer that was [00:58:28] Speaker 06: Did the hearing, did anybody tell the hearing officer about that interview? [00:58:36] Speaker 02: The hearing officer had the proposal for removal and they had our response to the proposal for removal. [00:58:40] Speaker 06: I don't think depended on that. [00:58:42] Speaker 02: What I'm talking about. [00:58:44] Speaker 06: It did not explicitly depend on that. [00:58:47] Speaker 02: What I'm talking about is what Your Honor referred to as sort of the clock starting over again after the hearing officer's first decision finding in favor of Ms. [00:58:57] Speaker 02: Johnson, and that pursuing the removal after the hearing officer's first decision was intentional misconduct by the government in violation of her First Amendment rights. [00:59:13] Speaker 02: That's good. [00:59:14] Speaker 07: Thank you for your. [00:59:15] Speaker 07: All right. [00:59:17] Speaker 07: Thank you. [00:59:19] Speaker 07: Thank you. [00:59:32] Speaker 08: I think hopefully two brief points, Your Honor. [00:59:35] Speaker 08: Going to the question of the April 1st and April 27th interviews, I just want to be clear as to Booth, who is the final decision maker in the case, the district court found no evidence that he knew of either of the two interviews. [00:59:47] Speaker 08: As to the April 1st interview, the court also found that Patton knew nothing about it. [00:59:53] Speaker 08: interview that's issue here is the April 27th interview, whether Patton knew about it and what role she played in the decision making process. [01:00:03] Speaker 06: The other point I wanted to make, just going back to the district court, I think you correctly stated the standard under Johnson versus Jones, that if there's, if the district court is saying, look, the record supports [01:00:13] Speaker 06: you know, read in the light most favorable to the plaintiff, the evidence of record supports, that Patton was aware of the WSA 9 interview and a reasonable jury could find that that was a motivating factor, that that's not something that's before us. [01:00:34] Speaker 08: I disagree. [01:00:35] Speaker 08: Under Johnson versus Jones. [01:00:36] Speaker 08: Under Scott versus Harris, I believe it is. [01:00:38] Speaker 08: And other circuits have recognized that very, again, very narrow exception. [01:00:42] Speaker 08: It has to be blatantly contradicted by the record. [01:00:45] Speaker 08: And there could be no evidence. [01:00:48] Speaker 08: So blatantly contradicted in two ways. [01:00:50] Speaker 08: There's only two pieces of evidence in this record. [01:00:53] Speaker 08: Patton's statement, she didn't know about it. [01:00:55] Speaker 08: And that April 28th email that didn't reference the April 27th interview and only suggested that Johnson was going to give an interview at some point in the future, that cannot establish [01:01:08] Speaker 08: that Patton had actual knowledge of the April 27th interview. [01:01:12] Speaker 06: It seems like pretty fair circumstantial evidence that they're in this grappling with her. [01:01:19] Speaker 06: She's blowing the whistle. [01:01:21] Speaker 06: She's sending out email information saying, look, it's a crisis in there. [01:01:26] Speaker 06: They're not doing COVID. [01:01:28] Speaker 06: She's the poster child for objecting to the policies on COVID protection of employees and inmates in the jail at this time. [01:01:40] Speaker 06: They're not going to learn something that's been publicly broadcast? [01:01:45] Speaker 07: Again, what's the evidence in the record, Your Honor? [01:01:47] Speaker 07: It's speculative. [01:01:48] Speaker 06: No, the evidence in the record is that it's completely publicly available and that they knew it was happening. [01:01:53] Speaker 07: That's, and so it's circumstantial evidence. [01:01:55] Speaker 06: I don't know that they. [01:01:55] Speaker 06: But you're saying that the record blatantly contradicts. [01:01:58] Speaker 08: Yes, and in our view, it does. [01:02:00] Speaker 08: OK. [01:02:00] Speaker 08: Yes, I stand firm by that, Your Honor. [01:02:02] Speaker 08: And then I just want to go back to the hearing examiner's initial determination regarding the 22 emails that she found to be protected by the Whistleblower Protection Act. [01:02:12] Speaker 08: As the court knows, there's a whistleblower claim in this case. [01:02:15] Speaker 08: Of those 22 emails in this case, in her whistleblower claim, [01:02:20] Speaker 08: Johnson only argues that one of those 22 emails were protected by the whistleblower protection act. [01:02:25] Speaker 08: I think that's very telling in terms of the accuracy of the hearing examiner's initial decision. [01:02:30] Speaker 08: Once we explain to the hearing examiner what the whistleblower protection act actually protected, she agreed the Johnson removal was appropriate in this case. [01:02:39] Speaker 08: I'm sorry, third point, and I hate to do this, but I just want to last point. [01:02:43] Speaker 08: Council's concession today at the podium regarding the availability of clearly established law is very reminiscent of the concession at the podium in Vasquez, which in this court's words killed the claim that there was no qualified immunity. [01:02:57] Speaker 08: And on that, I will ask that the court reverse. [01:03:01] Speaker 05: Thank you. [01:03:01] Speaker 05: Thank you. [01:03:02] Speaker 05: Case is submitted.